(1 of )This artwork by Paul Tong relates to the increasing impact of online social networks.

Facebook and a challenge to free speech

STEPHEN L. CARTER

BY STEPHEN L. CARTER | June 21, 2014

The U.S. Supreme Court announced last week that it will hear the appeal of one Anthony Elonis, who is serving a 44-month federal prison sentence for posting on his Facebook page threats against his ex-wife.

Although few seriously expect Elonis' conviction to be overturned, the case is not nearly as simple as it seems. At the very least, scholars and lawyers hope the justices will bring clarity to an area that is in desperate need of it: the constitutional limits on government power to punish online speech.

A bit of background: After the breakup of his seven-year marriage, Elonis began to post bizarre images on his Facebook page. He was fired from his job, for example, after posting a photograph of himself holding a knife to the throat of a fellow employee who had charged him with sexual harassment. The photo was captioned, "I wish."

Elonis posted a lot more threats online, mostly against his estranged wife. The messages were fairly awful, and there were lots of them.

Just a tiny sample, edited down for a general readership: "If I only knew then what I know now, I would have . . . dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder." "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

A state court judge classified the postings as abuse and ordered Elonis to stop. In response, Elonis came up with this: "Did you know that it's illegal for me to say I want to kill my wife? It's illegal. It's indirect criminal contempt. It's one of the only sentences that I'm not allowed to say."

And this is just a fraction of the scary stuff Elonis posted. It's easy to see why his ex-wife was terrified. Elonis, however, says the whole thing is a big misunderstanding. He didn't intend the threats as threats. He was letting off steam, it seems, inspired by the lyrics of the rapper Eminem, who wrote and recorded a song about brutally murdering his own ex-wife.

But Eminem's song is evidently art. A reader at rapgenius.com commented: "This is by far one of the most disturbing songs I have ever heard in my whole life. And it's horrible. But it is exactly what rap should be."

No doubt Elonis would agree: Words strung together can sound horrible and yet be art. Even bad art, he might contend, is entitled to constitutional protection. As he wrote on his Facebook page: "Art is about pushing limits."

(Note, please, that I am not classifying Elonis as an artist; I am insufficiently familiar with the Eminem oeuvre to offer an opinion.)

The law in this area is a bit of a mess. The courts decide cases like this according to what is known as the "true threat" doctrine — a rule that tries to get around the obvious First Amendment problems by creating a range of circumstances in which what sounds like a threat is nevertheless the subject of constitutional protection.

The problem is that the true-threat doctrine can be understood in two ways. Elonis' claim is that what should matter is whether he intended his postings as true threats. If not — more to the point, if the prosecution cannot prove beyond a reasonable doubt that he did — then he cannot be convicted. Many courts, however, approach the question from the other way: Would a reasonable person interpret the postings as true threats? If so, then his speech is not protected by the First Amendment.

The Supreme Court, alas, has left the matter murky. Its own most recent decision on this subject commanded no majority.

What difference does the answer make? Consider Eminem's song again. The ex-wife about whom he wrote claims that his performance of the song led her to attempt suicide. Suppose a prosecutor had chosen to go after Eminem as a result. What should matter more — the rapper's intention in creating his music or its effect on the woman he raps about murdering? Most courts and scholars would say the context matters. Eminem is performing. Elonis . . . isn't.

So what is Elonis doing? Before the advent of cyberspace, the wounded and angry spent a lot of time muttering to themselves. Now they spend a lot of time muttering online. Some them will do more than mutter. And a tiny handful — as we saw just last month in Isla Vista — talk themselves into acts of horrific and murderous violence.

The First Amendment question is whether, to spare ourselves the potential horror, we should treat all the scary online mutterers as would-be murderers. As one amicus brief urging the court to take the case points out, those who choose to vent online lose effective control of their postings. The same people who a generation ago would have mumbled angry threats in a bar, or to a handful of friends, now post them on social media instead.

Once upon a time, cooler heads would have warned them to calm down. Nowadays, they likely face a visit from the sheriff.

Don't get me wrong. I'm not suggesting that online threats shouldn't be investigated, and I certainly am not defending Elonis. But when it comes to prosecution, we might do well to focus less on the reception and more on the intention. If, on the other hand, we conclude that we have to punish all the online mutterers — just in case — then it's not clear why we should spare the artists.

To illustrate the point, suppose that Elonis instead had chosen to perform Eminem's song, posted the video on Facebook and dedicated the posting to his ex-wife. If the true-threat doctrine is to be interpreted according to the reasonable fear of the target, then it's not obvious why prosecuting Eminem and prosecuting Elonis should be different.

I do not mean to seem insensitive to those who are frightened because they perceive as real social media comments that represent venting or jest. I'm simply worried about the consequences of removing intention entirely from the equation.

Police should certainly investigate apparent threats that come to their attention. The question the Supreme Court must now decide is whether the First Amendment allows prosecution of those angry mutterers who never intended to threaten.

<i>Stephen L. Carter, a professor of law at Yale University, is a columnist for Bloomberg View.</i>